0521830966 cambridge university press the crisis of imprisonment protest politics and the making of the american penal state 1776 1941 mar 2008

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the crisis of imprisonment
In the Age of Jackson, private enterprise set up shop in the American penal
system. Working hand in glove with state government, by 1900 contractors

in both the North and the South would go on to put more than half a
million imprisoned men, women, and youth to hard, sweated toil for private gain. Held captive, stripped of their rights, and subjected to lash and
paddle, these convict laborers churned out vast quantities of goods and
revenue, in some years generating the equivalent of more than $30 billion
worth of work. By the 1880s, however, a growing cross-section of American
society came to regard the prison labor system as morally corrupt and unbefitting of a free republic: it fostered torture and other abuses, degraded
free citizen-workers, corrupted the government and the legal system, and
defeated the supposedly moral purpose of punishment. The Crisis of Imprisonment tells the remarkable story of this controversial system of penal
servitude – how it came into being, how it worked, how the popular campaigns for its abolition were ultimately victorious, and how it shaped and
continues to haunt America’s modern penal system. The author takes the
reader into the vital, robust world of nineteenth-century artisans, industrial
workers, farmers, clergy, convicts, machine politicians, and labor leaders
and shows how prisons became a lightning rod in a determined defense of
republican values against the encroachments of an unbridled market capitalism. She explores the vexing moral questions that prisons posed then
and that are still exigent today: What are the limits of state power over the
minds, bodies, and souls of citizens – is torture permissible under certain
circumstances? What, if anything, makes the state morally fit to deprive a
person of life or liberty? Are prisoners slaves and, if so, by what right? Should
prisoners work? Is the prison a morally defensible institution? The eventual
abolition of prison labor contracting plunged the prisons into deep fiscal
and ideological crisis. The second half of the book offers a sweeping reinterpretation of Progressive Era prison reform as above all a response to this
crisis. It concludes with an exploration of the long-range impact on the
modern American penal system of both penal servitude and the movement
for its abolition.
Rebecca M. McLennan is Associate Professor of History at The University of
California, Berkeley. In 1999, she received Columbia University’s Bancroft
Award for her doctoral dissertation on the rise of the American penal state.

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cambridge historical studies in american law and society
Series Editor
Christopher Tomlins, American Bar Foundation
Previously published in the series:

Tony A. Freyer, Antitrust and Global Capitalism, 1930–2004
Davison Douglas, Jim Crow Moves North
Andrew Wender Cohen, The Racketeer’s Progress
Michael Willrich, City of Courts, Socializing Justice in Progressive Era Chicago
Barbara Young Welke, Recasting American Liberty: Gender, Law and the
Railroad Revolution, 1865–1920
Michael Vorenberg, Final Freedom: The Civil War, the Abolition of Slavery,
and the Thirteenth Amendment
Robert J. Steinfeld, Coercion, Contract, and Free Labor in Nineteenth Century
America
David M. Rabban, Free Speech in Its Forgotten Years
Jenny Wahl, The Bondsman’s Burden: An Economic Analysis of the Common
Law of Southern Slavery
Michael Grossberg, A Judgment for Solomon: The d’Hauteville Case and Legal
Experience in the Antebellum South

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Anon., “The Old System – and the New,” ca. 1916. By permission, Osborne Family
Papers, Syracuse University Library, Special Collections Research Center.

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The Crisis of Imprisonment
protest, politics, and the making of the
american penal state, 1776–1941
Rebecca M. McLennan
The University of California, Berkeley

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CAMBRIDGE UNIVERSITY PRESS

Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo
Cambridge University Press

The Edinburgh Building, Cambridge CB2 8RU, UK
Published in the United States of America by Cambridge University Press, New York
www.cambridge.org
Information on this title: www.cambridge.org/9780521830966
© Rebecca M. McLennan 2008
This publication is in copyright. Subject to statutory exception and to the provision of
relevant collective licensing agreements, no reproduction of any part may take place
without the written permission of Cambridge University Press.
First published in print format 2008

ISBN-13 978-0-511-39326-6

eBook (EBL)

ISBN-13

978-0-521-83096-6

hardback

ISBN-13

978-0-521-53783-4

paperback

Cambridge University Press has no responsibility for the persistence or accuracy of urls
for external or third-party internet websites referred to in this publication, and does not
guarantee that any content on such websites is, or will remain, accurate or appropriate.

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´
For Asta,
Felicity, and Roy

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Contents

Acknowledgments

page xi

Introduction: The Grounds of Legal Punishment

1

1

Strains of Servitude: Legal Punishment in the Early Republic

14

2

Due Convictions: Contractual Penal Servitude and Its
Discontents, 1818–1865

53

Commerce upon the Throne: The Business of Imprisonment
in Gilded Age America

87

3

Disciplining the State, Civilizing the Market: The Campaign
to Abolish Contract Prison Labor

137

5

A Model Servitude: Prison Reform in the Early Progressive Era

193

6

Uses of the State: The Dialectics of Penal Reform in Early
Progressive New York

239

American Bastille: Sing Sing and the Political Crisis of
Imprisonment

280

Changing the Subject: The Metamorphosis of Prison Reform
in the High Progressive Era

319

Laboratory of Social Justice: The New Penologists at Sing
Sing, 1915–1917

376

Punishment without Labor: Toward the Modern Penal State

417

4

7

8

9

10

Conclusion: On the Crises of Imprisonment

469

Select Bibliography

473

Index

485
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Acknowledgments

This book originated, more years ago than I care to admit, as a doctoral
dissertation in Columbia University’s Department of History. It matured
as a book manuscript at Harvard University and was finally put to rest at
the University of California, Berkeley. Each of these institutions generously
funded its research and writing. Columbia’s Richard Hofstadter and Whiting
fellowships provided funding and release from teaching for the first phase of
the work. Subsequently, faculty research grants from the History Department
at Harvard University, the Charles Warren Center for Studies in American
History, the Committee on Degrees in Social Studies, and Harvard’s CookeClark and Dunwalke funds enabled me to undertake the fresh research
needed to turn a doctoral dissertation into a book manuscript. A sabbatical
and research funding from the UC Berkeley History Department made it
possible for me to write up the new material and to completely overhaul,
polish, and, finally, dispatch the manuscript.
Colleagues, staff, and students at these universities and others played an
instrumental role in the book’s fruition. Sven Beckert, Elizabeth Blackmar,
Lizabeth Cohen, Nancy Cott, Elizabeth Dale, Timothy J. Gilfoyle, Jon Gjerde,
David Hollinger, Akira Iriye, Pratap Mehta, Michael Meranze, Ira Katz
Nelson, Anders Stephanson, Chris Sturr, Charles Tilly, and Michael Willrich

all generously read and commented upon one or other version or section of
the manuscript. Eric Foner repeatedly turned around dissertation chapters
with lightning speed and impressed upon me time and again the importance of relating my story of penal crisis and conflict to the broader sweep of
American political and social history. I am particularly indebted to my doctoral advisor, Barbara J. Fields, for her years of deep and patient engagement, close reading, criticism, guidance, and mentorship. It is no exaggeration to say that neither the dissertation nor the book would have been
possible without her. Fellow graduate students Michael Berkowitz, Eliza
Byard, Sam Haselby, Mae Ngai, Adam Rothman, Mike Sappol, Nathalie Silvestre, Jeffrey Sklansky, David Suisman and members of the Americanist
dissertation reading group at Columbia engaged early drafts with the dedication and ruthless honesty that are the graduate student’s prerogative.
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Acknowledgments

Their insights proved indispensable to the task of strengthening and sharpening the book’s central arguments. Colleen Lye’s critical acumen, unflagging friendship, and good humor carried me through more than one crisis of
The Crisis of Imprisonment. Thanks also to Michael Berkowitz, Hillary Kunins,
Despina Kakoudaki, and Linda Voris for their true friendship and for being
such generous sources of intellectual and culinary sustenance. In a different, but equally vital, vein, Molly Sullivan and Margaret Hornick played no
small role in the book’s fruition.

Sometimes, the simplest of questions and the shortest of dialogues can
expose the weakest point in a book manuscript’s argument or structure
and bring to light alternative, perhaps more fruitful, paths of inquiry. Over
the years, a number of people generously wreaked this type of creative
havoc on the project. Conversations with David Blackburn, Daniel Botsman,
Joseph Cleary, James Currie, Robin Einhorn, Paula Fass, Kathleen Frydl,
David Henkin, Carla Hesse, Martin Jay, Kevin Kenny, Thomas Laqueur, Lisa
McGirr, Marla Reed, Lisa Rivera, Julie Saville, Margo Schlanger, Daniel
Shearer, Susanna Siegel, Jonathan Simon, Nikhil Pal Singh, Jacqueline
Stevens, James Vernon, and Peter Zinoman prompted me to rethink and
refine some parts of the book, and to significantly extend others. Likewise, discussions with a number of gifted graduate and undergraduate students, including Nina Billone, at UC Berkeley, and Zachary Ramirez, Ria
Tabacco, Ezra Tessler, and other members of my “Rule of Law” seminar at
Harvard, helped me discover what was – and wasn’t – working in the argument. In a similar vein, faculty forums at the American Bar Foundation; the
University of Texas, Austin; the University of Chicago; New York University;
Columbia University; York University; and Harvard Law School significantly
influenced my thinking and the book. I have tried my best to incorporate or
otherwise engage the critiques and insights that these various and ongoing
encounters afforded. I should add that, while my interlocutors undoubtedly
helped me improve the book, I take sole responsibility for any errors of fact
or interpretation that may remain.
A special thanks is due Christopher Tomlins, the legal historian and series
editor at Cambridge University Press, who challenged me to write the best
book I could, and who later – much later – graciously accepted a far longer,
far more ambitious manuscript than the one for which he had bargained.
Thanks also to Frank Smith and his Cambridge staff, most especially Simina Calin and Jessica Schwarz, and to the project manager, Mary Cadette,
and my indexer, Teri Grimwood, for expertly ushering the text through
to publication. James Zimmerman, David Pickell, and Nancy Shaw of the
Provincetown Art Association and Museum deserve special mention for their
assistance with the cover artwork. At the opposite end of the process, the
task of research was significantly eased by the expert help and guidance of

the staff of the Special Collections Research Center at Syracuse University
Library; Teresa Capone and her colleagues at the Lloyd Sealy Library, John
Jay College of Criminal Justice; the archivists at the New York State Archives;
and my dedicated research assistants, Ari Waldman and Judy Collins. Many


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xiii

thanks, also, to the many dedicated administrators, including Janet Hatch
and Corey Paulson at Harvard and Linda Finch Hicks, Deborah Kerlegon,
and fellow staff of the UC Berkeley History Department, for providing essential infrastructural support over the years.
Although conceived in New York, a great deal of encouragement and
preparation for the writing of this book originated a continent and an ocean
away. In New Zealand, my father, the late Roy McLennan, engaged the dissertation critically and thoughtfully in its earlier stages. My mother, Felicity
McLennan, was a vital source of support and encouragement throughout. Thanks also to Claudia Geiringer, Jackie Hay, Kate O’Keeffe, Barbara
Middleton, Peter Middleton, and Peter McLennan for their moral and material support in connection with the project. Recognition is also due the late
John Omer-Cooper, and his colleagues, Barbara Brookes, Tom Brooking,

Erik Olsson, the late Hugh McLeod, Dorothy Page, Roberto Rabel, and
Ann Trotter, of the History Department at the University of Otago for giving
me an unusually good berth from which to embark on advanced studies
in the field of modern history. Finally, I owe a profound debt of gratitude
´
to Asta
Kristjana Sveinsdottir.
´
Her careful reading of multiple early drafts,
philosopher’s insistence upon analytic precision, and a´ st og umhyggja made
all the difference.


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introduction
The Grounds of Legal Punishment

In 1913, amid the oppressive humidity of a mid-summer’s evening in the
lower Hudson Valley, a crowd of men, women, and children from the village of Ossining joined a bevy of reporters and photographers on a hill
overlooking Sing Sing Prison. Roused by rumors that a large-scale prison
break was imminent, they watched as 1,500-odd convicts shuffled quietly
across the prison yard and into the old stone cellhouse, each clasping his
nightly ration of a half-loaf of bread in hand. The keepers, townspeople, and
reporters may well have heaved a sigh of relief as the last few prisoners filed
into the cellhouse and the heavy iron door swung closed behind them. With
its thick granite walls, double-shelled construction, and centralized locking
system, this “bastille on the Hudson” was all but immune to escape; once
entombed within its gloomy masonry, even the most ingenious of prisoners
stood little chance of emancipation.1
But a prison-break is only one kind of trouble convicts can concoct; and,
on that tense July evening, as the last few stragglers were secured in the
cellhouse, the guards and the free citizens of New York were about to be
rudely reminded that, even under the condition of lockdown, prisoners are
capable of turning the tables on their keepers and throwing the state into
crisis. As reporters from the New York Times would recount the evening’s
events, the trouble began as hundreds of convicts simultaneously hurled

their heels of bread through the cellhouse’s outer window panes, causing
a great shower of bread and glass to crash into the yard and street below.
A cacophony of whistling and howling swiftly followed, and then a volley of
raucous denunciations of the warden, the food, and the general conditions
of incarceration. The convicts’ point, rudely punctuated by bread so stale
it could shatter thick glass, was unambiguous: “They are starving us!” the
prisoners yelled at the reporters on the hill beyond; “give it a good write up
in your paper!”2
The following morning, and for several days following, headlines, photographs, and detailed stories about the defenestration of one of America’s
most infamous prisons emblazoned the front pages of local, regional, and
1

2

One of the first recorded uses of the term “bastille” in connection with Sing Sing can be
found in ex-prisoner Levi S. Burr’s 1833 publication, A Voice From Sing Sing; Giving a General
Description of the State Prison . . . A Synopsis of the Horrid Treatment of the Convicts in that Prison
(Albany, n.p., 1833).
Unidentified prisoners, quoted in New York Times, Jul. 24, 1913, 1.

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The Crisis of Imprisonment

national newspapers. Even the editors of the usually sedate New York Times
splashed photographs and sensationalist headlines across their paper’s front
page through most of the following week. Back at Sing Sing, the bread throwing and cat-calling subsided after a few hours; but trouble continued to erupt
sporadically over the following three days. Only after a series of tense negotiations between the warden and the prisoners, carried out under the forceful
gaze of the National Guard and the critical scrutiny of the press corps, did the
prisoners’ unruliness come to an end. Sing Sing’s troubles, however, would
not end with the formal restoration of rule; they merely changed form. In
the wake of the spectacle of the bread riot, a crowd of senators, prison commissioners, Grand Jurors, newspaper reporters, and social reformers from
New York and beyond swept through the prison in search of explanations
and culprits. As the investigations spurred accusations of mismanagement
and corruption, from the office of Governor William Sulzer on down to the
kitchens of prison cook Louis Beaulieu, the prisoners and keepers of Sing
Sing found themselves embroiled in one of the fiercest political battles ever
to have been fought in the Empire State.
Sing Sing, like most American prisons, had seen a number of strikes and
riots in the course of its eighty-year history, and most of these had sparked
political debate over the causes of the trouble, living conditions, and the general administration of the prisons. However, none had precipitated as divisive and embittered a crisis as that which unfolded in the summer of 1913.
A deceptively simple act, the prisoners’ bread riot had combined drama,
protest, and a rather blunt demonstration of the convicts’ grievances, to
great – and eminently newsworthy – effect. In a few short minutes, and
wielding nothing more than their paltry rations, the prisoners had managed to take possession of the very edifice that was supposed to guarantee
the good order of both the state’s prison and the state of New York. More
than simply breaking the rules and disrupting the normal routine (which
more commonplace acts of defiance, such as refusing to eat or resisting a

lock-down, could have achieved just as well), the convicts had succeeded in
turning their prison into a stage upon which to dramatize their grievances
and publicly indict their captors. However fleetingly, the convicts had substituted a voice of their own for that of the state, and, with the aid of the
press, they had made their voice heard well beyond the high walls of New
York’s stone “bastille.”
Although, in the American imagination, Sing Sing has long stood apart
from other prisons as an institution at once famous and infamous, the protest
and ensuing political crisis of 1913 were neither unprecedented nor, in the
context of the day, markedly exceptional. As I shall argue in the pages to
follow, a long continuum of episodic instability, conflict, and political crisis
has characterized prison-based punishment in the United States, from the
early republican period, down through the nineteenth century, and deep
into the twentieth. Far from being the exception to the norm, Sing Sing
stood squarely within a long, broad, American tradition of debate, riot, and
political and moral crisis over the rights and wrongs of legal punishment, the

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3

proper exercise of state power, and the just deserts of convicted offenders.
This book traces the lineage, meaning, and consequences of popular conflicts over legal punishment, from the early republican penitentiary-house,
through the great prison factories of the Gilded Age and the penal-social
laboratories of the Progressive Era, to the ambitious, penal state-building
programs of the New Deal era.
That the American prison has historically been an unstable and highly
contested institution ought not to surprise us. Historically, it has been at
once a highly visible apparatus of state coercion, a concentrated mass of
human energies and desires, an official symbol of justice, security, and the
state’s presumed right over life and death, and the outstanding example
of an unfree institution in a putatively free society. As such, this powerful and symbolically-laden institution has inevitably been both an object
of debate and contestation in and of itself and a critical battleground
and potent instrument in the larger social conflicts that have episodically
shaken and recreated American government and society since the Revolution. While prisoners and their keepers were often at the forefront of
these various struggles to remake and control the prison and the penal
arm of the state, they were by no means alone in the fray. In the two centuries or more following independence from Great Britain, a remarkably
diverse array of communities, classes, and sections of American society, animated by a variety of religious convictions, moral beliefs, and political affiliations, actively contested and struggled to determine the proper means and
ends of legal punishment. As I argue in the pages to follow, many of these
struggles had important and lasting consequences, not only for the practice
and ideology of legal punishment and the penal arm of government, but
for the structure and legitimating fictions of American social order more
generally.
American lawmakers grappled with the twin questions of by what means
and to what ends the state ought to punish convicted offenders almost as
soon as the republic began the transition to peacetime, in the mid-1780s.
In the wake of independence from Britain and her “royal” mode of punishment, strict Calvinists, liberal Quakers, common laborers, artisans, merchants, farmers, and jurists earnestly debated the meaning of a truly Christian and republican penal practice. Early republican efforts to establish such

a practice eventually resulted in the founding of the house of repentance,
and the penitential system of legal punishment. Although, initially, merchants, jurists, physicians, and lawmakers proclaimed the house of repentance (and the penitential mode of punishment more generally) an enlightened and humane alternative to the discredited penal practices of the old
world monarchies, other Americans – including strict Calvinist clergy, laboring republicans, and the penitentiary’s captive subjects – openly challenged
its moral legitimacy. By the late 1810s, these strains of dissent and subversion
had prompted such widespread public disillusionment with the penitentiary
system that the penal arm of state government was plunged into a protracted
crisis of legitimacy. In state after state, that crisis proved fatal; in the early


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1820s, lawmakers began to cast around, once again, for a new approach to
legal punishment.
The mode of punishment that lawmakers, jurists, and keepers eventually
substituted in the troubled penitentiary’s stead was that of contractual penal
servitude. Improvised earliest at Auburn prison in New York (in the 1820s),
contractual penal servitude went on to become the dominant mode of legal
punishment in almost all Northern (and, eventually, all Southern) states
down through the turn of the nineteenth century. Combining cellular technology with hard, productive labor, the formal deprivation of political and

civil rights, and liberal doses of the lash and paddle, it resolved many of the
disciplinary, fiscal, and political crises that had beset the early republican
house of repentance. By 1835, this system of contractual penal servitude
had all but eclipsed the rival “Pennsylvania system” of perpetual isolation to
become the dominant mode of legal punishment across the several states.
Both at home and in Europe, lawmakers and penal reformers hailed it as
the most enlightened and economic penal system of its day. The apparent
stability of the new mode of legal punishment, however, proved short-lived.
At the same time that Alexis de Tocqueville and his fellow European investigators were touting its peculiar advantages, that system had been quietly
sowing the seeds of its own set of controversies and crises. As we shall see,
the source of contractual penal servitude’s instability was the practice upon
which that system of punishment was founded and the interests of which it
had increasingly come to serve: that is, the sale of prisoners’ labor power to
private business interests. In the course of the nineteenth century, prison
labor contracting would provoke, first, a series of small-scale, local protests
among free workingmen and, eventually, a large-scale, popular campaign
for its abolition. As that campaign gathered momentum in the late Gilded
Age, state after state would ultimately be compelled to abolish or otherwise
severely retrench the offending practice. Like a prisonhouse of cards, the
larger edifice of contractual penal servitude would first list and then collapse in the wake of the destruction of the labor contracting practice that
had been its fiscal, disciplinary, and ideological foundation.
Although, with the notable exception of historians of the American
South,3 few scholars have commented upon the abolition of prison labor
contracting, that event proved a watershed in American penal history. Abolition defused the mounting popular outrage at the remarkably profitable,
and often gruesomely exploitative use of sweated prison labor in industry,
3

See, for example, David M. Oshinsky, Worse Than Slavery: Parchman Farm and the Ordeal of
Jim Crow Justice (New York: Free Press, 1996); Alex Lichtenstein, Twice the Work of Labor: The
Political Economy of Convict Labor in the New South (London: Verso, 1996); C. Vann Woodward, Origins of the New South, 1877–1913 (Baton Rouge: Louisiana State University Press,

1951); and Edward Ayers, Vengeance and Justice: Crime and Punishment in the Nineteenth Century
American South (New York: Oxford University Press, 1984). See also, Blake McKelvey, “Penal
Slavery and Southern Reconstruction,” Journal of Negro History 20:2 (Apr. 1935), 153–79;
Karin Shapiro, A New South Rebellion: The Battle Against Convict Labor in the Tennessee Coalfields,
1871–1896 (Chapel Hill: University of North Carolina Press, 1998).

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5

and it carved a wide moat between the sphere of the market and that of legal
punishment. (It also reined in and partially “civilized” the market, as we will
see). But, at the same time, abolition opened up a remarkably intractable set
of disciplinary, fiscal, and ideological problems within the penal arm of the
state and spurred an outpouring of discourse around the social question that
contemporaries referred to as “the prison labor problem.” Most critically,

abolition activated and deeply conditioned the progressive prison reform
movement and the penal state-building initiatives of the late-nineteenth and
early-twentieth centuries.
Far from being an exceptional and isolated event, the Sing Sing protest
of 1913 was a particularly acute instantiation, both of the crises into which
the penal arms of most Northern states were propelled following the abolition (or, in some states, severe scaling back) of prison labor contracting,
and of the power struggles that progressives’ efforts to solve the prison labor
problem set in motion. When, in the late Gilded Age, Massachusetts, Ohio,
California, New York, and other Northern legislatures moved to abolish or
significantly scale back contractual penal labor, they, in effect, destroyed the
linchpin of everyday prison discipline, the foundation of nineteenth-century
penal ideology, and a critical source of funding for the penal arm of government. Despite the strenuous efforts of prison administrators in the first two
decades of the twentieth century to erect a state-use system of penal labor
upon the grave of the old contractual system, the vacuum of discipline and
ideology, and the uncertain basis of prison funding, persisted well into the
twentieth century. What unfolded, first within the penal arm of state government itself, and, eventually, in courtrooms, voting booths, union halls, the
popular Northern press, and the U.S. Congress, was a complex and, at times,
bitter series of struggles to determine the content of the new, postcontractual prison order. In New York’s case, the first wave of these struggles would
climax at Sing Sing, in riot and scandal. Eventually, those conflicts would
engender the formation of a new penal state – a process that would be greatly
accelerated by new federal legislation and court rulings in the New Deal era.
The history I narrate in the following pages builds upon, and is indebted
to, the expansive and richly varied field of crime and punishment history.
But it also seeks to inject into that field greater awareness of certain key,
neglected or undeveloped themes within American penal history; I hope,
in addition, to offer up a fresh and illuminating way of conceptualizing
legal punishment as an object of historical inquiry (chiefly by extending
the scope of the inquiry beyond the institution of the prison proper to the
legal, political, economic, and cultural dimensions of legal punishment),
and to cast new light upon legal punishment’s place in the broader sweep of

American history. The ten chapters that follow touch upon many themes, but
the most important of these are: first, the centrality of productive labor, both
as an activity and as an element of penal ideology, to the nineteenth-century
American penal system; second, the practical and formal reinvention, in
the nineteenth century, of legal punishment as a species of involuntary
servitude; third, the workings of power within and around the penal systems


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of the nineteenth and early twentieth centuries; and, finally, the critical role
that the abolition of contractual prison labor played in the making of the
modern American penal state.
Although, as I illustrate in the pages to follow, the activity and ideology
of forced productive labor, and the legal condition of penal servitude with
which that labor was tightly entwined, hung, like a heavy iron chain, across
a century-and-a-half of American legal punishment, most scholars of penal
history have either glossed over it, treated it as a peculiar affliction of the New
South (made symptomatic in chain gangs, convict leasing, and penal farms),

or denied it played any significant role in prison life, administration, or politics north of the Mason-Dixon Line. We have several excellent accounts of
the place of hard labor in early republican penal practice and ideology,4 and,
at the other end of the nineteenth century, a number of deeply researched
studies of the New South’s penal labor camps and prisons.5 However, we
still know relatively little about the expansive, industrial prison contracting
systems that flourished in almost all the Northern states between 1820 and
1890, and that gave concrete substance to the ubiquitous legal sentence
of confinement to hard labor. There are but two systematic histories of
prison labor contracting in the North: Larry Goldsmith’s nuanced history
of life, labor, and resistance in the Massachusetts State Prison at Charlestown,
and Glen A. Gildemeister’s doctoral dissertation on competition between
free workers and prison labor in industrializing America.6 These impressive
4

5

6

Michael Meranze, Laboratories of Virtue: Punishment, Revolution, and Authority in Philadelphia,
1760–1835 (Chapel Hill: The University of North Carolina Press, 1996); Adam Jay Hirsch,
The Rise of the Penitentiary: Prisons and Punishment in Early America (New Haven: Yale University
Press, 1992); Louis P. Masur, Rites of Execution: Capital Punishment and the Transformation of
American Culture, 1776–1865 (New York: Oxford University Press, 1989); Michael S. Hindus,
Prison and Plantation: Crime, Justice and Authority in Massachusetts and South Carolina, 1767–
1878 (Chapel Hill: The University of North Carolina Press, 1980).
Supra, n. 3. See also, Mary Ellen Curtin, Black Prisoners and Their World, Alabama, 1865–
1900 (Charlottesville and London: University Press of Virginia, 2000); Matthew Mancini,
One Dies, Get Another: Convict Leasing in the American South, 1866–1928 (Columbia: University
of South Carolina Press, 1996); Robert Perkinson, “The Birth of the Texas Prison Empire,
1865–1915” (Ph.D. diss., Yale University, 2001); and Donald R. Walker, Penology for Profit: A

History of the Texas Prison System, 1867–1912 (College Station, Texas: Texas A & M University
Press, 1988).
Larry Goldsmith, “Penal Reform, Convict Labor, and Prison Culture in Massachusetts, 1800–
1880” (Ph.D. diss., University of Pennsylvania, 1987); Glen A. Gildemeister, “Prison Labor
and Convict Competition with Free Workers in Industrializing America, 1840–1890” (Ph.D
diss., Northern Illinois Press, 1977/New York: Garland, 1987). See also, Larry Goldsmith,
“‘To Profit by His Skill and Traffic in His Crime’: Prison Labor in Early Massachusetts,” Labor
History 40 (Nov. 1999): 439. A few texts include a chapter on prison industries: See, for
example, W. David Lewis, From Newgate to Dannemora: The Rise of the Penitentiary in New York,
1796–1848 (Ithaca, NY: Cornell University Press, 1965), 178–200, and Anne Butler, Gendered Justice in the American West: Women Prisoners in Men’s Penitentiaries (Urbana: University
of Illinois Press, 1997), 174–98. See also John A. Conley, “Prisons, Production, and Profit:
Reconsidering the Importance of Prison Industries,” Journal of Social History 14:2 (Winter
1980), 257–275. Interestingly, sociologists and criminologists have been more attuned than
historians to the question of the social and political significance of convict labor and its

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works of scholarship suggest that the practice of selling the labor power of
imprisoned men and women very probably played a critical role not only
in the everyday life of American prisons, as a whole, but in the larger political field in which the prisons, as public institutions, were firmly anchored.
As yet, however, these important insights have not been expanded upon
and have had little appreciable impact on the master narrative of American
penal history.
That master narrative was first penned, thirty-five years ago, by David J.
Rothman, in his groundbreaking study of the origins of the ante-bellum
prison; it has since been retold, largely without amendment, in the leading
synthetic treatments of American crime and punishment history.7 In The Discovery of the Asylum: Social Order and Disorder in the New Republic, Rothman provided what remains an unrivaled account of the e´ lite reformers who guided
the establishment of the first state prison systems proper (in the 1820s and
1830s) and of the social anxieties and moral ideals they brought to their
work. Rothman’s book tells us a great deal about the weltanschauung of Jacksonian elites, and the content of official prison rules and doctrines. However,
framed chiefly as a study of norms and ideas, and drawing mainly on official reports and reform literature, his work discloses much less about the
quotidian experience and rhythms of prison life, the push-and-tug of power
relations among keepers, prisoners, and reformers, and the larger political force-field in which the state prisons, in the “Age of Democracy,” were
firmly grounded. As something that was practiced, more than written about
by reformers, the hard labor of convicts is also rendered all but invisible in
Rothman’s account. Although noting that the idea and doctrine of labor
were central to reformers’ and officials’ efforts to organize prison life, and
conceding (in a typically pithy paragraph) that the contracting-out of prison
labor “became increasingly popular” in the 1850s and 1860s, his book as a
whole conveys the impression that prison labor was of negligible importance,
both to prison life and to the legal and ideological structures of antebellum

7

discontents in the North: See for example, Christopher Adamson, “Toward a Marxist
Penology: Captive Criminal Populations as Economic Threats and Resources,” Social Problems 31:4 (Apr. 1984), 435–58; Henry Calvin Mohler, “Convict Labor Policies” (MA thes.,
University of Wisconsin, 1923), published in the Journal of the American Institute of Criminal Law and Criminology 15:4 (Feb. 1925), 530–97; and Rosalind P. Petchesky, “At Hard
Labor: Penal Confinement and Production in Nineteenth-Century America,” in Crime and
Capitalism: Readings in Marxist Criminology, ed. David F. Greenberg (Palo Alto: Mayfield Pub.
Co., 1981). Curiously, in their transnational history of legal punishment and its relation
of “correspondence” with changing modes of production, Georg Rusche and Otto Kirchheimer make little mention of the great contract labor prisons of the American North.
Rusche and Kirchheimer, Punishment and Social Structure (New York: Columbia University
Press, 1939).
Rothman’s book played a key role in establishing penal history as a legitimate field of inquiry
within the American historical profession. David J. Rothman, Discovery of the Asylum: Social
Order and Disorder in the New Republic (Boston and Toronto: Little, Brown and Co, 1971). For
a leading synthetic treatment of American crime and punishment history, see Lawrence M.
Friedman, Crime and Punishment in American History (New York: Basic, 1993), espec. 77–82.


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punishment.8 A central objective of my work has been to trace the rise of contracting to “popularity;” another has been to assess the influence of prison

labor contracting on what Alexis de Tocqueville and Gustave de Beaumont
made famous at home and abroad as the so-called “American system”9 of
legal punishment.
As part of the field’s general neglect of prison labor, the most influential
of penal historians have also significantly underestimated the profitability of
the contracting systems under which productive convict labor was generally
organized between 1830 and 1890. Although David J. Rothman’s approach
is fundamentally different from that of Michel Foucault,10 both claim that
nineteenth-century prisons were generally unprofitable, and that the profit
imperative was a negligible force within the life of the institution. Although
it is certainly the case that e´ lite prison reformers of the nineteenth century did not usually place much emphasis on making the prisons profitable,
and that in both the American North and Western Europe, the state did
not generally make significant profits from its prison industries, in America
the private contractors who purchased convict labor power well below freemarket rates and set up machinery in the prisons almost always profited
handsomely from the traffic. Moreover, the profit imperative these businessmen quite logically took into the prison workshops with them was far
more influential on prison life and administration than were either the wellheeled, well-intentioned reformers of the Boston Prison Discipline Society
or the enlightened doctrines of convict rehabituation and spiritual reform.
(As we shall see in Chapters Two and Three, Northern prison labor was not
quite as unprofitable or as irrelevant to state government as Foucault and
Rothman infer, either; in the mid-1880s, for example, it was contributing
almost two dollars for every three dollars the states spent on maintaining
their prisons).11 In exploring the rise of prison labor contracting, then, I
also flesh out the impact of the profit imperative on various aspects of the
nineteenth-century prison system, and the nature of the relation between
the market and the penal arm of the state.
The second theme I foreground in the pages to follow is the reinvention of American legal punishment, after the Revolution and, particularly,
after 1830, as a distinctive species of involuntary servitude. In almost every
Northern state, by the middle of the nineteenth century, legal punishment
had not only been “institutionalized” (in the form of the prison), but had
8

9

10
11

Rothman offers a paragraph on free labor’s protests against prison competition, but does
not explore the upshot of that protest and its impact on the politics of legal punishment.
Gustave de Beaumont and Alexis de Tocqueville referred to the Philadelphia (or Pennsylvania) system of perpetual isolation and the Auburn (or New York) system of congregate
labor and nightly isolation as two variants of a single “American system,” and recommended
that France adopt the latter rather than the former (on the grounds that the Auburn plan
was “much cheaper in its execution”). Gustave de Beaumont and Alexis de Tocqueville,
On the Penitentiary System in the United States and Its Application in France (Carbondale and
Edwardsville: Southern Illinois University Press, 1964), 119, 134.
Michel Foucault, Discipline and Punish: The Birth of the Prison (New York: Pantheon, 1977).
See subsequent discussion, 90.

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assumed legal, symbolic, and practical status as a distinctive species of involuntary servitude. That system of penal servitude would go on to receive
official recognition and implicit approval in the Thirteenth Amendment to
the U.S. Constitution and all but four of the state constitutions. The justices
of the U.S. Supreme Court would also repeatedly recognize it as constitutional.12 (As late as 1914 the Court reiterated, with a discernible tone of
exasperation: “There can be no doubt that the State has authority to impose
involuntary servitude as a punishment for crime. This fact is recognized in
the Thirteenth Amendment, and such punishment expressly excepted from
its terms”).13
In tracing the fruition of this distinctive, American system of penal servitude, I engage and elaborate upon the insights of two legal historians, both
of whom have grappled with the question of punishment’s reinvention,
after the Revolution, as a system of bondage. In his original and conceptually dense study, The Rise of the Penitentiary: Prisons and Punishment in Early
America, Adam Jay Hirsch argues both that the early republican penitentiary
strongly resembled chattel slavery and that some early republican penal
reformers believed the penitentiary imposed a “justifiable” form of slavery
on convicted offenders.14 In a similar vein, James Q. Whitman writes that
“the status of [American] prisoners came, by the time of the Thirteenth
Amendment, to be explicitly assimilated to slaves” and that prisoners were
“treated as slaves.”15 Although I take seriously these scholars’ basic insight
that American penitentiaries and state prisons were institutions of bondage,
and prisoners, the involuntary bondsmen of the state, my research suggests
that the penal systems of the nineteenth century constituted a separate
and distinct species of involuntary servitude, and not one that is usefully
confounded with that of chattel slavery. Penal involuntary servitude drew,
particularly in some Southern states after the Civil War, on the law and ideology of American chattel slavery, but it also drew, far more directly, on
other variants of servitude (both voluntary and involuntary). Moreover, it

generated its own legal form and its own particular fictions concerning the
master–servant relationship. In the pages to follow, I track the reinvention
of legal punishment as a form of involuntary servitude and tease out its

12

13
14
15

Thirteenth Amendment, §1; Slaughter-House Cases, 83 U.S. 36, 69 (1873); United States v.
Reynolds 235 U.S. 133, 149 (1914).
United States v. Reynolds 235 U.S. 133, 149 (1914).
Hirsch, op cit., 71–92.
James Q. Whitman, Harsh Justice: Criminal Punishment and the Widening Divide between America and Europe (New York: Oxford University Press, 2003), 173, 176. In his wide-ranging
study of the impact of slavery on the evolution of penal practices from flogging in ancient
Greece to the chain gangs, lease camps, and prison farms of the American South, sociologist J. Thorsten Sellin makes no mention of the Northern states’ forced labor prisons,
while devoting three of twelve chapters to the American South. He thereby reinforces the
orthodox (and, as I argue here, false) assumption that slavery and involuntary servitude
left their imprint exclusively on Southern penal practice. J. Thorsten Sellin, Slavery and the
Penal System (New York: Elsevier, 1976).